IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

	Case number:  A122/2018
						          Date: 

DELETE WHICHEVER IS NOT APPLICABLE
(1)	REPORTABLE: YES/NO
(2)	OF INTEREST TO OTHERS JUDGES: YES/NO
(3)	REVISED

....28/7/2020.........    ..............................................
         DATE                           SIGNATURE

					
	
In the matter between:

MERIAL                                                                                  1ST APPELLANT
MERIAL LIMITED                                                                  2ND APPELLANT
MERIAL SOUTH AFRICA (PTY) LTD                                   3RD APPELLANT

AND

CIPLA VET (PTY) LTD                                                             RESPONDENT
_____________________________________________________________
JUDGMENT

TOLMAY, J: (LOUW and HUGHES JJ concurring)

[1]	This is an appeal against a judgment of Baqwa J, sitting as the Commissioner of Patents. The court a quo dismissed the appellants’ application with costs.The application before the court a quo emanated from an action where the appellants were the plaintiffs and the respondent was the defendant in an action for the infringement of South African Patent No 96/8057 heard by Murphy J sitting as the Commissioner of Patents.

[2]	The respondent had pleaded as part of its defence that the patent was invalid on the grounds of (lack of) novelty, inutility, insufficiency and lack of inventive step (obviousness). The respondent amended its plea on various occasions, inter alia, to withdraw the objection of lack of novelty, and again on 9 January 2014, which was shortly before the trial to abandon reliance on the ground of obviousness.

[3]	The appellants stated that by that time extensive preparation and consultations had been held with counsel and the expert witnesses in preparation for the trial on the issue of obviousness, this much is clear from the affidavit of Mr Van Rooy, the attorney for the appellants.

[4]	The application before the court a quo turned on the interpretation of para 96 of Murphy J’s judgment which reads as follows:
“96. 	In the result, while the defendant has not proven invalidity, the action stands to be dismissed on the ground that the plaintiffs failed to discharge the onus to prove that the defendant's product, Fiprotec, included integers b) and d) of claim 1 of the patent and thus infringed. Costs should follow the defendant's success, including, by reason of the nature of the claim and its complexity, the costs of two counsel. It was agreed between the parties that the expert witnesses would be entitled to their qualifying fees. The defendant agreed that it was liable for the costs occasioned by the amendment of the plea.”

[5]	The court then made the following order:

“97.  	In the premises, I make the following orders:

i)  	The action is dismissed with costs, such costs to include the costs of two counsel and the qualifying fees of Prof Barbour.

ii)  	The defendant is ordered to pay the wasted costs occasioned by its amendment of its plea.”

[6]	The appellants appealed the judgment of Murphy J. Whilst the appeal to the Supreme Court of Appeal (SCA) was pending a bill of costs was prepared by the appellants in respect of the wasted costs. The respondent filed a notice of intention to oppose on 17 February 2016. The taxation of the bill was initially set down for 16 to 19 August 2016. The respondent objected to the forum of taxation on 10 August 2016. This was four working days before the taxation was to take place. The Companies and Intellectual Property Commission (the CIPC) was approached on 11 August 2016 to appoint a taxing master. The taxing master was appointed on 12 September 2016.  Notice was given to tax the main bill on 7 October 2016 and was set down for taxation for the period from 1 to 4 November 2016.

[7]	In the meantime the SCA on 1 April 2016 upheld the appellants’ appeal and set aside the order of the court a quo and substituted it with the following order:
“1. 	The defendant is interdicted and restrained from infringing claims 1, 2, 3, 7 to 15 and 18 to 20 of the patent.

2.	The defendant is ordered to deliver up to the plaintiffs all infringing Fiprotec products in its possession or under its control.

3.	An inquiry is ordered in relation to the damages suffered by the plaintiffs as a consequence of the infringement of the patent by the defendant alternatively an inquiry into the reasonable royalty to which the plaintiffs are entitled.

4.	In the event of the parties being unable to reach an agreement as to the further pleadings to be filed, discovery, inspection or other matters of procedure relating to the inquiry, an order authorising any one of the parties to make application to the court for directions in regard thereto.  

5.	Each of the claims referred to in para 1 above of South African Patent Number 1996/8057 is certified as being valid in terms of section 74 of the Patents Act 57 of 1978.  

6.	The defendant is ordered to pay the plaintiffs’ costs of suit, including the costs of two counsel and the qualifying fees of the plaintiffs’ expert witnesses‟.

[8]	Despite the SCA’s judgment the respondent persisted with its initial objection and insisted that the wasted costs should not to include the costs of two counsel and the qualifying fees of the appellants’ expert witnesses. As a result of this the appellants launched the application in the court a quo.

[9]	The court a quo found that the order by Murphy J was clear and unambiguous and that the only meaning that could be given to the order, if read in context, was that the wasted costs did not include the costs of two counsel and the qualifying fees of the experts. The Court based this conclusion on the fact that two costs orders were made as set out in paras (i) and (ii) of the order. Under the alternative contention that the appellants were entitled to the correction of a patent error or omission, the court a quo concluded that the order was unambiguous and as such a final order which rendered the court functus officio. The court a quo also found that the application could not succeed due to the long time that elapsed before the appellants launched their application, and the appellants knew or ought to have known on 24 July 2014 that the wasted costs order, mentioned in para (ii) of Murphy J’s order did not include the costs of two counsel and the qualifying fees of the experts. The court a quo found that the appellants had been labouring under their own misapprehension.

[10]	The appellants argued that, seen in the context of para 96 of the judgment of Murphy J confirming the complexity of the matter, the order made in para (ii) directed that, whatever costs were to be granted, such costs should include the costs of two counsel and the costs of the parties’ experts. As a result, so it was argued, Murphy J’s order in para (ii) requires clarification, insofar as the order for costs did not follow the same wording as that set out in para (i) of the order. The clarification is required, so the argument went, as the respondent does not agree with the appellant’s interpretation, rendering the order ambiguous.

[11]	In the alternative, it was argued by the appellants, that if the relevant part of the order is interpreted in the way in which the respondent proposes, it contains a patent error or omission, as it should have provided that the wasted costs, should include the costs of two counsel and the qualifying fees of the appellants’ expert witnesses.

[12]	The respondent argued that there is neither an ambiguity nor an error in Murphy J’s order and that the wasted cost did not include the costs as suggested by the appellants. It was pointed out that the appeal to the SCA was limited to para (i) of the order and did not include para (ii) of the order. It was also argued that the delay in launching the application was unreasonable.

[13]	The relief sought can either be granted in terms of Rule 42 or the common law. The court a quo however limited its judgment only to Rule 42 and did not consider the common law. Rule 42 provides for exceptions to the general principle that once a judge has made a final order which correctly expresses the true decision of the court, the court cannot change that order, because it is functus officio. However, under the common law this strict rule can be relaxed under special circumstances and although the main judgment cannot be altered it might be “timeously supplemented in respect of consequential matters such as the award of the costs for which no provision is made”. 

[14]	The court may also clarify its judgment or order if, on  a proper interpretation, the meaning remains “obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment”. Importantly, specific reference is made in Gentiruco to the alteration of costs orders, where the costs aspect was not argued, as happened here, the costs order may be supplemented or altered. It was stated that the reason for this is “that in such a case the court is always regarded as having made its original order ‘with the implied undertaking’ that it is open to the mulcted party … to be subsequently heard on the appropriate order as to costs.”

[15]	It follows that one will have to interpret para 96 and the order taking into consideration the guidelines referred to above. In Natal Joint Municipal Pension Fund v Endumeni Municipality,  the SCA set out the general principles pertaining to interpretation as follows:
“[18] … The present state of the law can be expressed as follows. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation. In a contractual context it is to make a contract for the parties other than the one they in fact made. The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document.
[19] All this is consistent with the ‘emerging trend in statutory construction’. It clearly adopts as the proper approach to the interpretation of documents the second of the two possible approaches mentioned by Schreiner JA in Jaga v Dönges NO and another, namely that from the outset one considers the context and the language together, with neither predominating over the other. This is the approach that courts in South Africa should now follow, without the need to cite authorities from an earlier era that are not necessarily consistent and frequently reflect an approach to interpretation that is no longer appropriate. …”

[16]	The well-established principles governing the interpretation of court orders were set out in Genticuro where the following was stated:
“The starting point is to determine the manifest purpose of the order.  In interpreting a judgment or order, the court’s intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual well-known rules relating to the interpretation of documents.  As in the case of a document, the judgment or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention.”

[17]	The case of Zondi v MEC, Traditional & Local Govt Affairs  confirms the principle that an order of court can, in a proper case, be corrected or altered. It was stated as follows:

“[32]	An analysis of our pre-constitutional case law suggests that these exceptions were grounded on at least two interrelated considerations. The first was the need to do justice. Support for this is to be found in the West Rand Estates case, which is probably the first case in which the Appellate Division was called upon to consider whether it had the power to amend its order. In that case the Appellate Division had inadvertently omitted to award interest that had been claimed to a successful litigant. In amending the order, the Court concluded that 'the only course to pursue is to adopt the one which justice demands'. The Court observed that 'the Court is merely doing justice between the same parties'. And it added that this 'is a plain matter of necessity and justice'. Subsequent case law did not suggest otherwise. This language makes it plain that in amending its order, the Court was motivated by the need to do justice.

“[33]	The other consideration relates to the need to adapt common law to the changing times and circumstances … 

“[34]	What emerges from our pre-constitutional era jurisprudence is that the general rule that an order once made is unalterable was departed from when it was in the interests of justice to do so and where there was a need to adapt the common law to changing circumstances and to meet modern exigencies. It is equally clear from the case law that in departing from the general rule, the Court invoked its inherent power to regulate its own process. Thus in West Rand Estates, the Court held that:

'It is within the province of this Court to regulate its own procedure in matters of adjective law. And, now that the point has come before it for decision, to lay down a definite rule of practice. I am of opinion that the proper rule should be that which I have just stated. The Court, by acting in this way, does not in substance and effect alter or undo its previously pronounced sentence, within the meaning of the Roman and Roman-Dutch law. The sanctity of the doctrine of res judicata remains unimpaired and of full force, for the Court is merely doing justice between the same parties, on the same pleadings in the same suit, on a claim which it has inadvertently overlooked.'”

[18]	It is accordingly clear that the interpretation of a judgment and/or order should be done, taking into consideration not only the meaning of the words, but also the context within which the order was made. The intention and purpose of the judgment and order should be ascertained primarily from the language according to the aforementioned rules. The judgment or order and the court's reasons for giving it have to be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify or supplement it. In such a case not even the court which gave the judgment or order could be asked to state what its subjective intention was in giving it. However, if any uncertainty does emerge, the circumstances surrounding or leading up to the court's granting the judgment or order may be investigated and regarded in order to clarify it. In this process the context and surrounding circumstances are relevant.

[19]	The court a quo, in my view, erred in finding that Murphy J had no intention to deal with the costs and wasted costs on the same basis. In para 96 he recognised the complexity of the case, which certainly could not have been intended to be limited to the respondent’s case.

[20]	As a result the nature of the claim and its complexity was a given, whether it applies to the wasted costs or the costs ultimately granted by the SCA, justifying the use of expert witnesses and two counsel. There is no basis to contend that para (ii) of the order is consistent with Murphy J’s understanding. There is no merit in the respondent’s contention that “special costs” were awarded by Murphy J and a distinction should be drawn between “the main part of the case” and “another part of the case”.

[21]	The court a quo erred in not finding that properly interpreted, more particularly in the context of para 96 of the judgment confirming the complexity of the matter, as well as against the background facts, the order made by Murphy J in part (ii) of that order directed that, whatever costs were to be granted, such costs should include the costs of two counsel and the qualifying fees of the parties’ experts. 

[22]	 The court a quo failed to have proper regard to the context and wording of para 96 and should have done so in the circumstances of the case.  
 
[23]	A court must however be approached within a reasonable time of the judgment, because it is in the interest of justice that “there should be relative certainly and finality as soon as possible concerning the scope and effect of orders of court.” Whether an application was brought within a reasonable time will depend on the facts of the case.

[24]	Mr Bowman (SC) on behalf of the appellants argued, as far as the delay is concerned, that the appellants did not expect that the respondent would persist with their approach, that the aforementioned costs were not included, after the SCA upheld their appeal on 1 April 2016. It was, so the argument went, on this basis that the main bill was prepared for taxation and served on 7 October 2016 and the application before the court a quo was then launched.

[25]	In my view the learned judge a quo erred in finding that the application could not succeed due to the long-time which elapsed before the appellants sought the relief. If one considers the facts, the notice to oppose the bill of costs was filed on 17 February 2016, while the appeal to the SCA was pending. On 1 April 2016 the SCA upheld the appeal and inter alia ordered the respondent to pay the plaintiff’s costs of suit, including the costs of two counsel and the qualifying fees of the experts. In my view, it was accordingly not unreasonable of the appellants not to expect that the respondent would persist with this point. In any event, some of the delay was also caused by the respondent who only raised the issue of the incorrect forum a few days before the taxation was to take place. A further factor that also contributed to the delay was the fact that the CIPC took a month to appoint a taxing master. In the light of the finding relating to the interpretation of para 96 and the order, there was an ambiguity in the order and the appellants could not reasonably have been expected to have known that on 14 July 2014 when Murphy J made the order. As a result the delay in launching the application was not unreasonable. The appeal should accordingly be upheld.

[26]    The Appellant asked for a punitive costs order. There is no merit in this request, especially in the light of the fact that the court a quo dismissed the application. Mr Bowman (SC) requested costs of two counsel, but correctly conceded that the granting of such an order may not be warranted in this instance. 

[27]	The following order is made:
	
27.1	The appeal is upheld;

27.2	The order made by Baqwa J is set aside and substituted with the following:

27.2.1	The order made by Murphy J in the Court of the Commissioner of Patents on 27 June 2014 is clarified as to declare that the Applicants’ wasted costs shall include the cost of two counsel and the qualifying fees of their expert witnesses;

27.2.2	 The Respondent is ordered to pay the costs of the application before Baqwa J, 

27.3     The Respondent is ordered to pay the costs of the appeal.

____________________
R G TOLMAY
JUDGE OF THE HIGH COURT

DATE OF HEARING:			17 JUNE 2020
DATE OF JUDGMENT:			28 JULY 2020

ATTORNEY FOR APPELLANTS: 	DM KISCH INC t/a KISCH IP	
ADVOCATE FOR APPELLANTS:	ADV L BOWMAN SC 
						DV AM HEYSTEK SC

ATTORNEY FOR RESPONDENT:	BRIAN BACON 
ADVOCATE FOR RESPONDENT:	ADV E P VAN RENSBURG

	

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